Francisco Nepamuceno Olivo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 17, 2021
• Docket: 20-70903
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO NEPAMUCENO OLIVO, No. 20-70903

Petitioner, Agency No. A087-765-034

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 13, 2021** San Francisco, California

Before: McKEOWN, FORREST, and BUMATAY, Circuit Judges. Concurrence by Judge BUMATAY

Francisco Nepamuceno Olivo, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from

the Immigration Judge’s (“IJ”) decision denying his application for cancellation of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). removal under 8 U.S.C. § 1229b(b)(1). Because we lack jurisdiction over

Nepamuceno Olivo’s petition, we dismiss it.

Nepamuceno Olivo argues that the IJ and BIA erred in determining that he

did not establish that his removal would result in exceptional and extremely

unusual hardship to his qualifying relatives because they failed to properly apply

the legal standard to the undisputed facts. See 8 U.S.C. § 1229b(b)(1)(D). But as

we have held, “we lack jurisdiction to review the IJ’s subjective, discretionary

determination that [a petitioner] did not demonstrate ‘exceptional and extremely

unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D).” Martinez-Rosas v. Gonzales,

424 F.3d 926, 930 (9th Cir. 2005); see also 8 U.S.C. § 1252(a)(2)(B)(i)

(“Notwithstanding any other provision of law[,] . . . no court shall have jurisdiction

to review . . . any judgment regarding the granting of relief under section . . .

1229b, [the cancellation of removal provision].”).

Nonetheless, Nepamuceno Olivo argues that the Supreme Court’s recent

decision in Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020), establishes that his

challenge falls within the exception to this jurisdictional bar set out in 8 U.S.C. §

1252(a)(2)(D), which provides that the limitation on judicial review in 8 U.S.C. §

1252(a)(2)(B)(i) “shall [not] be construed as precluding review of constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Specifically, Nepamuceno

Olivo argues that Guerrero-Lasprilla’s conclusion that the phrase “questions of

2 law” in § 1252(a)(2)(D) includes “the application of a legal standard to undisputed

or established facts,” 140 S. Ct. at 1067, provides for judicial review of whether

the BIA correctly applied the “exceptional and extremely unusual hardship”

standard to the facts of his case.

Not so. Long before the Court concluded in Guerrero-Lasprilla that the

phrase “questions of law” in § 1252(a)(2)(D) includes “the application of a legal

standard to undisputed or established facts,” id., we concluded the same. See

Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007). Accordingly, the

principle announced by the Supreme Court in Guerrero-Lasprilla has long

coexisted with our jurisprudence under § 1252, including our holding that the

hardship determination is a subjective, discretionary determination that we lack

jurisdiction to review. Thus, though we concluded nearly 15 years ago that we

possess jurisdiction under § 1252(a)(2)(D) to review questions involving the

application of statutes or regulations to undisputed facts, neither Ramadan’s

holding, nor by extension the Court’s holding in Guerrero-Lasprilla, “infringe[s]

upon the rule that discretionary determinations are beyond our review.” De

Mercado v. Mukasey, 566 F.3d 810, 815 n.3 (9th Cir. 2009).

Nepamuceno Olivo also argues that the BIA lacked jurisdiction because the

defective Notice to Appear (“NTA”) that he received was not cured by the

satisfactory notices that he subsequently received. His argument is foreclosed by

3 our precedent. In Fermin v. Barr, we held that any “lack of time, date, and place in

the NTA sent to [petitioner] did not deprive the immigration court of jurisdiction

over her case” because the proper remedy for such an error is simply providing

“the complete notice at a later time.” 958 F.3d 887, 895 (9th Cir. 2020).1 Because

this argument is foreclosed by our precedent, and because we lack jurisdiction to

review the agency’s determination that Nepamuceno Olivo failed to establish that

his removal would result in exceptional and extremely unusual hardship to his

qualifying relatives, we dismiss his petition for review.

PETITION DISMISSED.

1 This conclusion is not affected by Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), which “concerns the requirements for a notice to appear to trigger the stop- time rule for cancellation of removal; [but] has no bearing on jurisdiction.” United States v. Sanchez, No. 20-30084, ___ Fed. App’x ___ (9th Cir. July 14, 2021).

4 Nepamuceno Olivo v. Garland, No. 20-70903 FILED BUMATAY, Circuit Judge, concurring: AUG 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

As a matter of text, structure, and history, the “exceptional and extremely

unusual hardship” determination under 8 U.S.C. § 1229b(b)(1)(D) appears to be a

mixed question of law and fact. See Trejo v. Garland, 3 F.4th 760, 766–74 (5th Cir.

2021); Singh v. Rosen, 984 F.3d 1142, 1150–54 (6th Cir. 2021). Under recent

Supreme Court precedent, we retain jurisdiction over such questions. See Guerrero-

Lasprilla v. Barr, 140 S. Ct. 1062 (2020).

I still concur with the court’s decision to dismiss this petition for lack of

jurisdiction, however, because binding precedent dictates that we treat the hardship

determination as a discretionary question. See Romero-Torres v. Ashcroft, 327 F.3d

887, 892 (9th Cir. 2003). We are accordingly precluded from reviewing petitioner’s

claim. See 8 U.S.C. § 1252(a)(2)(B).